HASSAN v. THE UNITED KINGDOM – JUDGMENT
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F. Derogations relating to detention under Article 15 of the
European Convention on Human Rights and Article 4 of the
International Covenant on Civil and Political Rights
40. Leaving aside a number of declarations made by the United
Kingdom between 1954 and 1966 in respect of powers put in place to quell
uprisings in a number of its colonies, the derogations made by Contracting
States under Article 15 of the Convention have all made reference to
emergencies arising within the territory of the derogating State.
41. Article 4 of the International Covenant for the Protection of Civil
and Political Rights (“ICCPR”) contains a derogation clause similar to
Article 15 of the Convention. According to the information available to the
Court, since ratifying the ICCPR, 18 States have lodged declarations
derogating from their obligations under Article 9, which provides for “the
right to liberty and security of person”. Of these, only three declarations
could possibly be interpreted as including a reference, by the authorities of
the derogating State, to a situation of international armed conflict or military
aggression by another State. The States which filed these derogations were
Nicaragua, between 1985 and 1988, where the declaration referred to the
United States’ “unjust, unlawful and immoral aggression against the
Nicaraguan people and their revolutionary government”; Azerbaijan,
between April and September 1993, where the declaration referred to the
“escalating aggression by the armed forces of Armenia”; and Israel, where
the declaration made on 3 October 1991 and currently applicable reads as
follows:
“Since its establishment, the State of Israel has been the victim of continuous threats
and attacks on its very existence as well as on the life and property of its citizens.
These have taken the form of threats of war, of actual armed attacks, and campaigns
of terrorism resulting in the murder of and injury to human beings.
In view of the above, the State of Emergency which was proclaimed in May 1948
has remained in force ever since. This situation constitutes a public emergency within
the meaning of article 4 (1) of the Covenant.
The Government of Israel has therefore found it necessary, in accordance with the
said article 4, to take measures to the extent strictly required by the exigencies of the
situation, for the defence of the State and for the protection of life and property,
including the exercise of powers of arrest and detention.
In so far as any of these measures are inconsistent with article 9 of the Covenant,
Israel thereby derogates from its obligations under that provision.”
None of the States explicitly expressed the view that derogation was
necessary in order to detain persons under the Third or Fourth Geneva
Conventions.
42. As regards State practice, in her book, “Captured in War : Lawful
Internment in Armed Conflict” (Hart Publishing, Editions A. Pedone, Paris
and Oxford 2013) Els Debuf referred to a study she had undertaken of the
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